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2007 DIGILAW 878 (JHR)

Bijay Kumar Singh v. Smt. Manju Devi

2007-11-29

D.G.R.PATNAIK, M.Y.EQBAL

body2007
JUDGMENT 1. This appeal filed by the appellant is directed against the judgment dated 30.9.2005 and its corresponding decree dated 7.10.2005 passed by the Principal Judge, Family Court Bokaro, in Title Matrimonial Suit No. 39 of 1996 whereby the suit filed by the appellant under Section 9 of the Hindu Marriage Act praying for a decree against the respondent for restitution of his conjugal rights was dismissed. 2 As per the pleadings of the applicant/appellant in the suit, his marriage with the respondent was solemnized on 21.4.1992 at Jamshedpur according to Hindu rites and customs and there-after the couple enjoyed their conjugal relations at the house of the appellant at Chandrapura for about a month. However, on account of the alleged unwarranted interference by the father of the respondent, disputes between the spouses; arose as a result of which, the wife left the house of her husband withdrawing herself from his company and began to live in the house of her parents at Jamshepdur. Repeated attempts on the part of the appellant-husband pleading with his wife to return to him and resume conjugal relations having failed the suit for a decree against his wife for restitution of conjugal rights was filed by the appellant. The respondent wife contested the suit by filing her written statement making specific allegations against the appellant and stating inte alia that though for the initial few months after marriage, she was treated well at her matrimonial house, but later, her husband and her parents-in-law began subjecting her to ill treatment, neglect and cruelty for non-fulfilment of their persistent demand for articles by way of dowry The dispute was referred to the panchayat for settlement pursuant to which the husband who had earlier refused to take the respondent wife back to his house from her parents house, had agreed to bring her back where-after she was taken to her matrimonial house where she lived with her husband sharing conjugal life with him and during this period, she also conceived from her husband. Howeyer, the demand for dowry and articles by her husband and in-laws continued to persist and she used to be subjected to cruelty, which even extended to attempts made on her life by her husband and in- laws on a few occasion. Howeyer, the demand for dowry and articles by her husband and in-laws continued to persist and she used to be subjected to cruelty, which even extended to attempts made on her life by her husband and in- laws on a few occasion. She has further alleged that when the matter became unbearable and (sic) danger to her life, she informed her parents where after she was taken by her father to his house and it was under such compulsive circumstances and for such reasons that the respondent has not been able to muster courage to resume conjugal relations with her husband on whom she has no more trust and confidence. On the basis of the rival pleadings, the learned court below framed the following issues for determination: (i) whether the suit is maintainable in its present form? (ii) Whether there is valid cause of action for the suit? (iii) Whether the applicant is entitled to t decree of restitution of conjugal rights, as prayed for by him? 3 Both the parties adduced oral and documentary evidence in support of their respective pleadings. On evaluation of the evidences brought on record by the parties, the learned court below recorded its finding that though the defendant is the legally married wife of the applicant and though the parties has been living separate since June, 1994, the respondent has offered reasonable grounds for living separate and for her refusal to resume conjugal rights with her husband on account of her appreheasion that her living in the company of her husband is fraught with danger to her life and person. Drawing inferences from the evidences on record, the trial court has observed that the appellant/husband by his own conduct, was responsible for giving the respondent wife a genuine and valid reason for her withdrawing herself from his society. On the above finding, the trial court dismissed the prayer of the appellant for restitution of his conjugal rights with the respondent. 4. Assailing the impugned judgment of the court below, Mr. On the above finding, the trial court dismissed the prayer of the appellant for restitution of his conjugal rights with the respondent. 4. Assailing the impugned judgment of the court below, Mr. Jay Prakash, Advocate appearing for the appellant has raised the following grounds: (i) that the impugned judgment and decree passed by the learned court below is contrary to law; (ii) that the court below has committed serious error by failing to frame specific issue as to whether the defendant had withdrawn herself from the society of her husband without reasonable excuse and in absence of any specific issue being framed and finding recorded on the same, the appellant has suffered serious prejudice; (iii) that the learned court below has erred in placing the entire burden of proof on the applicant to prove his case and has erroneously interpreted the term "reasonable excuse". 5. Section 9 of the Hindu Marriage Act enables the husband or wife to demand restitution of conjugal rights from the other and the Section reads as follows: 9. Restitution of conjugal rights: "When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly." The expression "reasonable excuse" is of significance and though the expression has not been defined in the Act, yet it (sic) that the reason offered by the spouse for withdrawing himself or herself from the company of the other should be legitimate, convincing and appealing to reason as understood by a person of ordinary prudence. 6. In a suit for restitution of conjugal rights, it becomes incumbent upon the plaintiff to establish that he had not given any reasonable excuse to the defendant for withdrawing from his company. The relevant issue which arises for determination is whether the appellant is entitled to a decree of restitution of conjugal rights with the respondent, as prayed for by him, and it implies that the relief would depend upon his establishing that the respondent had withdrawn herself without reasonable excuses. The relevant issue which arises for determination is whether the appellant is entitled to a decree of restitution of conjugal rights with the respondent, as prayed for by him, and it implies that the relief would depend upon his establishing that the respondent had withdrawn herself without reasonable excuses. It is not necessary to frame a separate issue as to whether the respondent has herself withdrawn form the society of her husband on "reasonable excuse". The grounds advanced by the learned Counsel for the appellant that the learned court below ought to have framed a separate issue as to whether the defendant had withdrawn herself from the society of the husband on reasonable excuse appears to be misconceived. 7. Referring to the evidence on record, though the appellant and his witnesses in unison have claimed that the respondent had left his house almost two years after marriage in June, 1994 and refured to restore conjugal rights with him in spite of his repeated endeavours and efforts to bring her back but it is also in their evidence that the relation between the appellant and the respondent was not altogether cordial and disputes did arise between them which had ultimately resulted in their estrangement. The appellant has also admitted that the respondent wife had instituted a case alleging cruelty and criminal misappropriation of property against him and against members of his family for the offences under Section 406/498A IPC and Sections 3 and 4 of the Dowry Prohibition Act. Ever though at the trial in the aforesaid criminal case, the applicant/appellant and other co-accused persons secured their acquittal, but this in itself does not obliterate the fact that the relation between the spouses were extremely estranged, so much so that the applicant/husband could not sustain his wifes faith and confidence in him. 8. From the evidence adduced by the defendant wife, it transpires that he defendant had suffered ill treatment, cruelty and torture at the hands of her husband and in-laws and several rounds of panchayats were convened and emporary reconciliation was achieved at one point of time and though the spouses had lived together for ten months, they could not maintain peace and amity between themselves, nor could they save their marriage from the rocks. By giving specific instances of abuse, assault and ill treatment to which she was allegedly subjected by her husband, the wife has declared categorically that resuming her living in the company of her husband is fraught with danger to her life and person. 9. The trial court has elaborately discussed the evidence adduced by the applicant and the defendant and has drawn its inference that the applicant has not been able to establish that the withdrawal by defendant from his society was without reasonable excuse and that the fact, on the contrary, shows that a reasonable cause was available to the defendant for with drawing herself from the society of her husband. 10. As has been rightly observed by the learned court below, where it appears from the conduct of the husband that the wife entertains apprehension of insecurity to her life and person, it amounts to reasonable excuse for her to withdraw herself from the society of her husband and she cannot be compelled by any decree under such circumstances, to resume cohabitation with her husband in whom she has lost her faith and confidence. The appellant has not been able to establish any infirmity, much less any illegality in the findings of the learned court below. 11. For the reasons aforesaid, there is no merit in this appeal. Accordingly, this appeal is dismissed.